ESTATE OF BARBARA RIVERA, a/k/a BARBARA RIVERA-CASTELLANO, a/k/a BARBARA CASTELLANO, Deceased. (13/907/C) — In this contested probate proceeding, Carmine Castellano, the preliminary executor, hereinafter the “Petitioner,” is asking the Court to grant an Order authorizing him to (1) sell the real property located at 63/67 Belfast Avenue, Staten Island, New York, (2) sell all five vehicles belonging to the estate, (3) ordering decedent’s children, who are also the issue of the preliminary executor, to turn over the keys, title and insurance information on the said five vehicles, (4) order said children to pay use and occupancy of 320 Clarke Avenue, Staten Island, New York the due mortgage, taxes and insurance on said property and, (5) ordering the children to obtain an insurance policy for the dwelling located at 320 Clarke Avenue and naming the Estate of Barbara- Rivera Castellano as the insured. The decedent’s children, hereinafter the “Respondents,” object to the relief requested by the petitioner arguing there is no urgency in selling any property in the estate at this time and that it would be appropriate to wait until a determination has been made as to a subsequent will filed for probate which could ultimately remove the petitioner as preliminary executor.
As fiduciary, the preliminary executor has the authority and, indeed, a duty to marshal assets (SCPA §1412(3)(a)). A preliminary executor is the fiduciary of an estate, and as such, has all the powers conferred under EPTL 11-1.1, unless otherwise indicated in the very instrument which bestowed him the power in the first place. EPTL 11-1.1 (b)(5) provides that “In the absence of contrary or limiting provisions in the court order or decree appointing a fiduciary, or in a subsequent order or decree, or in the will, deed or other instrument, every fiduciary is authorized with respect to any property or any estate therein owned by an estate or trust, except where such property or any estate therein is specifically disposed of (A) to take possession of, collect rents from and manage the same, (B) to sell the same at public or private sale, and on such terms as in the opinions of the fiduciary will be most advantageous to those interested therein.” Furthermore, the decedent’s will specifically authorized the fiduciary to sell any portion of real and or personal property under Article VIII (2). Therefore, as fiduciary, the Petitioner is requesting an order granting him authority, which he clearly possesses.
